F.G.W. v. S.W.
Decision Date | 10 December 2004 |
Docket Number | No. 2030720.,2030720. |
Citation | 911 So.2d 1 |
Parties | F.G.W. v. S.W. and D.W. |
Court | Alabama Supreme Court |
Michael Guy Holton, Pike Road; and Letitia Myers, Enterprise, for appellant.
J.E. Sawyer, Jr., Enterprise, for appellees.
S.W. and D.W., the paternal grandparents, petitioned the Juvenile Court of Dale County on June 12, 2003, for custody of their grandsons, who were ages 12 and 8 at the time. The paternal grandparents alleged that the children were dependent and that they were "in immediate or threatened danger of physical and/or emotional harm in that: Mother is being investigated in child abuse case which resulted in death of 21 [month] old [daughter]."
Following a hearing on the dependency petitions, the juvenile court granted temporary custody of the children to the paternal grandparents. The court ordered the Department of Human Resources ("DHR") to conduct an evaluation of the grandparents' and the parents' houses. F.G.W., the children's mother, filed a motion to set aside the temporary-custody order or, in the alternative, to order visitation.1 The juvenile court denied the mother's motion. The mother filed a "Motion To Reconsider Denial of Pendente [Lite] Visitation." Subsequently, the mother filed a motion requesting that the case be transferred to the Juvenile Court of Coffee County; that motion was granted. The Coffee Juvenile Court ordered that all temporary orders entered by the Dale Juvenile Court remain in effect pending further orders of the court.
On December 18, 2003, the mother filed a motion asking the court to set aside the Dale Juvenile Court's order awarding the paternal grandparents temporary custody. On January 9, 2004, the juvenile court denied the mother's motion for reconsideration of visitation and the mother's motion to set aside the temporary-custody order.
A final hearing was held on March 5, 2004. The testimony at the hearing indicates that the police had been called to the mother and father's house on several occasions. On one occasion, the mother was arrested for threatening the father with a gun, but that charge was later dismissed. The mother and the father have initiated divorce proceedings several times in the past, and currently there is a divorce proceeding pending. The mother originally believed that a man with whom she was having an affair had fathered the daughter until paternity tests showed that the daughter was biologically related to the father.
On the day that the daughter died, the mother left her two sons at home alone and she left the daughter with the mother's paramour while she went shopping and to a McDonald's, a fast-food restaurant. She had left the daughter with her paramour in the past. The mother stated that the daughter died from injuries suffered from having her head placed in a ceiling fan while the fan was set on its highest setting and then having her head "knocked" into the side of a dresser by the mother's paramour. The mother admitted that she originally believed that the daughter had merely fallen. The mother stated that she is scheduled to testify against her paramour in an upcoming criminal trial. However, she admitted that her paramour has accused her of killing the daughter. A letter from the district attorney indicated that he no longer considered the mother a suspect in the daughter's death. However, the mother admitted that DHR's child-abuse report of the incident that caused the daughter's death was marked as "indicated" and that DHR has listed her on its child-abuse registry.
The juvenile court found both sons to be dependent as defined by § 12-15-1(10), Ala.Code 1975, and it awarded custody of the sons to the paternal grandparents; it denied all other pending motions. The mother appeals.
The mother argues that the trial court abused its discretion in determining that her sons were dependent because, she alleges, the children did not meet any of the definitions of a dependent child provided in § 12-15-1(10). In essence, she argues that the case is more in the nature of a custody case than a determination-of-dependency case. The mother also argues that the trial court abused its discretion in awarding custody to the paternal grandparents because, she argues, as a natural parent, she has a prima facie right to custody of the children and the trial court did not find her to be unfit.
In O.L.D. v. J.C., 769 So.2d 299, 302 (Ala.Civ.App.1999), this court stated:
The juvenile court, in finding the children dependent, did not specify which subsection of § 12-15-1(10) applied to the children. The paternal grandparents argue that the children could be found dependent under any of the following provisions of § 12-15-1(10), defining a dependent child as a child:
Certainly, leaving a child in an abusive environment would meet any of the definitions of a dependent child listed above, and it is undisputed that the mother left the daughter in such an environment. However, the evidence does not indicate that the mother left the sons in that environment, and there was no evidence presented that the sons were ever around the paramour. Nevertheless, the juvenile court could have found the sons to be dependent under § 12-15-1(10)(m). This court has held:
M.M.S. v. D.W., 735 So.2d 1230, 1232 (Ala.Civ.App.1999).
In the present case, the mother and the father had had several incidents where the police had been called to their house. On one occasion, the mother had threatened the father with a gun. The evidence indicated that the sons had been left alone and unsupervised while the mother conducted her affair; that relationship continued for a significant amount of time. Although the district attorney no longer considered the mother a suspect in the daughter's death, the mother admitted that her paramour had accused her of harming the daughter. After considering the totality of the circumstances, including the mother's failure to protect the daughter and her leaving the sons unsupervised, coupled with the mother and the father's turbulent past, we conclude that the juvenile court's finding of dependency is supported by clear and convincing evidence.
The mother also argues that the juvenile court erred in giving custody to the paternal grandparents because the court did not find her to be unfit. A parent does not have to be found unfit when a child is determined to be dependent and custody...
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